{ "id": 8524653, "name": "MASUKI MISHIO WILLIAMSON v. RONNIE E. WILLIAMSON", "name_abbreviation": "Williamson v. Williamson", "decision_date": "1984-02-07", "docket_number": "No. 8321DC95", "first_page": "315", "last_page": "318", "citations": [ { "type": "official", "cite": "66 N.C. App. 315" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553167 ], "year": 1971, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0133-01" ] }, { "cite": "214 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555134 ], "year": 1975, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0527-01" ] }, { "cite": "79 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "239 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625828 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/239/0097-01" ] }, { "cite": "270 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562983, 8562966, 8563063, 8563096, 8563038 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0556-02", "/nc/300/0556-01", "/nc/300/0556-04", "/nc/300/0556-05", "/nc/300/0556-03" ] }, { "cite": "264 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549152 ], "year": 1980, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0082-01" ] } ], "analysis": { "cardinality": 381, "char_count": 6437, "ocr_confidence": 0.805, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20553843100505087 }, "sha256": "e1e1f58a2c7f516b23d94644e4ef863b99b4f6704f4450cda33d4c7ac1a1acb4", "simhash": "1:aeb404a7b03ae576", "word_count": 1032 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge EAGLES concur." ], "parties": [ "MASUKI MISHIO WILLIAMSON v. RONNIE E. WILLIAMSON" ], "opinions": [ { "text": "HILL, Judge.\nDefendant first argues that the trial court erred in its findings of fact and conclusions of law by disregarding uncontrovert-ed evidence that the parties stayed overnight together on two consecutive nights thereby entitling defendant to the presumption that the parties engaged in sexual intercourse. We hold that defendant is entitled to no such presumption.\nThe \u201cinclination and opportunity\u201d concept allows a presumption of adulterous sexual intercourse if adulterous inclination and opportunity are shown. 1 Lee, North Carolina Family Law, sec. 65, p. 321-22. The rule applies only to cases of alleged adultery, because adultery is an illegal act which by its very nature is difficult to prove. The problem of proof is compounded by eviden-tiary prohibitions of spouses testifying in their divorce actions about the adultery of the other, or from admitting their own adultery. See G.S. 55-10; see also G.S. 8-56. Such justification of the rule for adultery cases is nonexistent for proof of resumption of marital relations between separated spouses, an act which is not against the law but which merely breaks a contract between the spouses. The resumption of the marital relation is not inherently secretive and spouses are competent to testify about it. Accordingly, defendant\u2019s request to extend the \u201cinclination and opportunity\u201d presumption to proof of resumption of the marital relation is denied.\nDefendant\u2019s appeal, therefore, rests upon the determination of whether the parties had reconciled and resumed their marital cohabitation. \u201cWhere such a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated.\u201d Hand v. Hand, 46 N.C. App. 82, 85, 264 S.E. 2d 597, 598, disc. rev. denied, 300 N.C. 556, 270 S.E. 2d 107 (1980); Hester v. Hester, 239 N.C. 97, 79 S.E. 2d 248 (1953). When the evidence is conflicting, \u201c[t]he issue of the parties\u2019 mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation.\u201d Newton v. Williams, 25 N.C. App. 527, 532, 214 S.E. 2d 285, 288 (1975).\nThe trial court\u2019s fact finding reveals that defendant has failed to carry his burden of proof under any standard, as the findings disclose no evidence that either party intended to resume the marital relation and contradictory evidence as to whether an isolated incidence of sexual intercourse did take place. Where the trial judge sits as judge and juror, his findings of fact have the effect of a jury verdict and are conclusive on appeal if there is evidence to support them. Laughter v. Lambert, 11 N.C. App. 133, 136, 180 S.E. 2d 450, 452 (1971). Contradictions and discrepancies are matters to be resolved by the trier of the facts. Hand v. Hand, supra. In the case under review, there is competent evidence to support the trial court\u2019s findings of fact which in turn support the conclusions of law. The order entered thereupon is\nAffirmed.\nChief Judge VAUGHN and Judge EAGLES concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Meyressa H. Schoonmaker for plaintiff appellee.", "B. Jeffrey Wood for defendant appellant." ], "corrections": "", "head_matter": "MASUKI MISHIO WILLIAMSON v. RONNIE E. WILLIAMSON\nNo. 8321DC95\n(Filed 7 February 1984)\nDivorce and Alimony \u00a7 13.5\u2014 separation ior statutory period \u2014sufficiency of evidence\nDefendant-husband\u2019s motion to set aside a judgment by confession and a separation agreement and property settlement concerning monthly alimony payments was properly denied where defendant failed to meet his burden of proof that the parties intended to resume the marital relation where there was no evidence that either party intended to resume the marital relation and there was contradictory evidence as to whether an isolated incident of sexual intercourse did take place.\nAppeal by defendant from Tanis, Judge. Order entered 30 March 1982 in District Court, FORSYTH County. Heard in the Court of Appeals 9 January 1984.\nOn 21 July 1981, plaintiff wife and defendant husband entered into a separation agreement and property settlement in which defendant agreed to pay monthly alimony payments to plaintiff. On the same day, defendant signed a statement authorizing entry of judgment, and a judgment by confession was entered in Forsyth County which ordered defendant to pay monthly alimony to plaintiff pursuant to the separation agreement.\nOn 30 July 1982, defendant filed a motion to set aside the judgment by confession and the separation agreement and property settlement. Defendant alleged that the parties had engaged in sexual relations on two occasions during the separation period. Plaintiff denied the allegation of sexual relations between the parties.\nAfter hearing the parties\u2019 evidence, the trial court made the following pertinent findings of fact:\n4. The defendant testified: (a) that he spent the nights of May 27 and 28, 1982, with the plaintiff and had sex with her\n* * *\n(d) That on July 11, 1982, he called plaintiff and said he was not going to reconcile but that he had discussed reconciliation with the plaintiff.\n* * *\n8. Plaintiff testified that on May 27, 1982, defendant came back to the home and was tired and went to sleep before the television without even taking his clothes off and even slept in his shoes and that the parties did not have intercourse or any affectionate encounter and did not discuss reconciliation.\n* * *\n11. Plaintiff testified that on July 11, 1982, defendant called her and said he was not interested in reconciliation and did not talk about resumption of the marriage.\nBased upon these relevant findings of fact, the trial court concluded:\n1. There is no evidence that either party intended to resume the marital relation and no evidence that the parties held themselves out as husband and wife to the community.\n2. There is conflicting and contradictory evidence as to whether an isolated incidence of sexual intercourse did take place between the parties.\n3. The burden of proof is on the defendant in this action to set aside a written Separation Agreement and Property Settlement and a Confession of Judgment.\nIt is the Opinion of this Court that clear, cogent and convincing evidence is required to meet this burden of proof\n4. . . . [T]he defendant has failed to meet his burden of proof.\nThe trial judge denied defendant\u2019s motion to set aside the separation agreement and property settlement and the judgment by confession. Defendant appeals.\nMeyressa H. Schoonmaker for plaintiff appellee.\nB. Jeffrey Wood for defendant appellant." }, "file_name": "0315-01", "first_page_order": 347, "last_page_order": 350 }